Empowering Women Since 1881

Let’s Ratify the ERA: A Look at Where We Are Now

President Jimmy Carter signs an extension for the ERA ratification deadline. Image via National Archives

November 05, 2015

In 1923, the Equal Rights Amendment was first proposed in the U.S. Congress. Almost a half-century later, it finally passed Congress with approval from two-thirds of the U.S. House and U.S. Senate. To ratify a constitutional amendment, three-quarters of states must then agree to the proposed amendment. To date, the ERA has only been ratified by 35 of the necessary 38 states, leaving men and women unequal under the U.S. Constitution.

Why does the ERA matter?

“Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t.”
— Justice Antonin Scalia

The ERA would guarantee constitutional equality between men and women — a concept the majority of Americans agree is necessary. In fact, most people believe the ERA has already been ratified. Although state and federal legislative champions continue to push for incremental change for women’s equality, without the protection of the ERA those laws could be changed or revoked at the whim of legislators or judges. We can’t afford to roll back the advances we’ve made on equal pay for equal work, educational equity, and so many other crucial rights for women.

What does the ERA actually say?

The Equal Rights Amendment is a proposed amendment to the U.S. Constitution that would prohibit discrimination on the basis of sex.

Section 1: Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.

Section 2: The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

Section 3: This amendment shall take effect two years after the date of ratification.

What’s the holdup?

When the ERA initially passed in 1972, Congress placed a seven-year deadline on the ratification process. As that deadline neared, advocates successfully extended it until 1982. As 1982 came and went the number of states that had ratified the amendment stood at 35, three short of the required 38 states for full ratification. (Note: Five states — Idaho, Kentucky, Nebraska, Tennessee, and South Dakota — have attempted to withdraw their ratification of the ERA. However, legal precedent and statutory language establish that withdrawal of ratification is not accepted as valid.)

Where are we now?

Every year, our friends in the U.S. Congress reintroduce bills to move the ERA forward. Currently, legislators are working to advance two different strategies. The “three-state strategy” (S.J. Res. 15/H.J. Res. 51), championed by Sen. Ben Cardin (D-MD) and Rep. Jackie Speier (D-CA), would remove the 1982 deadline for ratification. Alternatively, the traditional “start-over strategy” (S.J. Res. 16/H.J. Res. 52), advanced by Sen. Bob Menendez (D-NJ) and leading ERA proponent Rep. Carolyn Maloney (D-NY), would offer the text of the ERA as a new amendment to the U.S. Constitution that would then need to go through the full state ratification process.

Legal scholars suggest that if three additional states do ratify the amendment, the ERA stands a good chance of acceptance. In 1992, states ratified the 27th Amendment, which was originally passed by Congress in 1789 — more than 200 years later.

Regardless of the strategy advanced, state action is needed to see a way forward for ratification. There are 15 states that have still not ratified this simple but crucial amendment. During the 2015 legislative session six states — Arizona, Florida, Missouri, North Carolina, Nevada, and Virginia — had bills to ratify the ERA. Not a single one of those bills made it past committee in either chamber of those statehouses. In the past, Arkansas, Illinois, Louisiana, Mississippi, and Oklahoma have also made attempts at ratification. In 2014, the Illinois Senate passed the ERA, but it did not go to a vote in the state House. AAUW members in these crucial states continue to capitalize on these opportunities and keep the momentum going.

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Does the Constitution need an Equal Rights Amendment to assure gender equality?

The Equal Rights Amendment stating that “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex” was proposed to amend the Constitution to include women in 1923. It has not yet been rat…

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